67 N.Y.2d 462 | NY | 1986
OPINION OF THE COURT
Absent inquiry by the court and consent by the defendant, an attorney may not represent a criminal defendant in a trial at which a star prosecution witness is a codefendant whose plea bargain — including the promise to testify against defendant — was negotiated by a partner in the same firm. In these circumstances defendant is denied his right to effective assistance of counsel.
The following factual recital is derived from the undisturbed findings made after a hearing held pursuant to CPL 440.10, as well as the hearing and trial records.
Defendant, Donald Mattison, was indicted on November 10, 1977, together with Dennis Maggese, on charges of robbery in the first degree. Maggese was already under indictment on unrelated burglary and drug charges, and was represented by Joseph Balok, in his capacity as an Assistant Public Defender. Balok was also a partner in the firm of Miller & Balok. Mattison was represented on the robbery charge by Raymond Urbanski, who was associated with the firm of Miller & Balok, and was recently admitted to the Bar.
After Maggese’s arraignment, the court assigned James Carmody to represent Maggese in place of the Public Defender’s office on the robbery charge. Thereafter, Balok and Carmody coordinated plea negotiations on Maggese’s behalf to
As the hearing court found, Urbanski conducted his defense of Mattison without any help from Balok. During or after Maggese’s plea negotiations Balok informed Urbanski that he represented Maggese and that Maggese had agreed to testify against Mattison. Urbanski told Mattison about Balok’s representation of Maggese at least as early as during his trial.
On November 14, 1978, the Appellate Division assigned Urbanski to represent Mattison on appeal. Ineffective assistance of counsel was not raised on appeal, and the conviction was affirmed.
In early 1983, Mattison made the present motion to vacate his conviction and for a new trial pursuant to CPL 440.10, in which he claimed that Balok, Miller and Urbanski, a firm of three lawyers, had a conflict of interest, and that he was denied effective assistance of counsel. Concluding that it was unable to resolve the questions raised on the papers, the court held a hearing at which several witnesses including Balok, Urbanski and Mattison testified. The court ultimately denied the motion, finding that no conflict existed, that Urbanski conducted a competent, effective and independent defense, and that by retaining Urbanski as counsel on appeal Mattison waived any ineffective assistance claim. The Appellate Division unanimously affirmed, without opinion, and a Judge of this court granted Mattison leave to appeal.
At the outset, we reject the People’s contention that Mattison waived his ineffective assistance claim because Urbanski represented him on appeal. The People rely upon People v Gomberg (38 NY2d 307, 316), in which we stated that the defendant must be deemed to have waived any claims arising out of his trial counsel’s representation because he retained the same attorney on appeal. Here, however, Urban-ski was assigned, not retained, as Mattison’s appellate counsel. Moreover, in Gomberg the court had inquired prior to trial whether the joint representation would result in a conflict and advised that any defendant who felt there was a conflict could
Joint representation of defendants is not in and of itself a conflict of interest or a denial of effective assistance of counsel (People v Gomberg, 38 NY2d 307, 312, supra). When jointly represented defendants proceed to trial together, a "conflict exists only when the individual defenses 'run afoul of each other’ ” (id., quoting People v Gonzalez, 30 NY2d 28, 34, cert denied 409 US 859). Actual conflict between defendants "may be shown, for example, through the existence of 'pronounced variations in the type and quantum of evidence against each defendant [which suggests] different theories and tactics of defense for each’ ” (People v Cruz, 63 NY2d 848, 850, quoting People v Baffi, 49 NY2d 820, 822). Once a conflict between codefendants at trial is established, prejudice is presumed, for "courts will not enter into 'nice calculations’ as to the amount of prejudice resulting from the conflict” (People v Gomberg, 38 NY2d 307, 312, supra).
In the interest of avoiding such conflicts, and because defendants may not always sense when a conflict exists or perceive how it might undermine effective representation, the Trial Judge "has a duty to protect the right of an accused to effective assistance of counsel” (People v Gomberg, 38 NY2d 307, 313, supra; People v Macerola, 47 NY2d 257, 263). Before the trial begins, "it is the responsibility of the Trial Judge, independent of the attorney’s obligation to inform his clients of any conflicting interests which may hinder his representation, to 'ascertain, on the record, whether each defendant [represented by the same attorney] has an awareness of the potential risks involved in that course and has knowingly chosen it’ ” (People v Macerola, 47 NY2d 257, 263, supra, quoting People v Gomberg, 38 NY2d 307, 313-314, supra). A Judge’s failure to make the appropriate inquiry, when circumstances require it, may result in reversal of a conviction and a new trial. In People v Macerola (47 NY2d 257, supra), for example, a new trial was necessary where the Judge had failed to make the appropriate inquiry, and each defendant’s
Macerola and Gomberg are of course distinguishable in that counsel there simultaneously represented at trial codefendants with competing interests, whereas here Maggese had struck his plea bargain during the period of common representation but before the commencement of Mattison’s trial. But the principles articulated in those cases govern this situation as well: to assure his right to effective assistance of counsel, defendant should have been independently informed of a conflicting interest on the part of Miller & Balok and the potential risks involved, so that he could intelligently choose whether to proceed with his attorney. Mattison was entitled to know of Balok’s involvement with Maggese in this matter as he proceeded to trial in which, in furtherance of the plea bargain advocated by Balok, Maggese was a principal antagonist whose credibility and testimony had to be undermined.
A similar issue was presented in People v Lombardo (61 NY2d 97), where defendant’s attorney had previously represented the People’s chief witness on unrelated charges. We concluded that the trial court’s failure to conduct a Gomberg inquiry was error, but that reversal was not required because "defendant has not demonstrated 'that a conflict of interest, or at least the significant possibility thereof, did exist’ ” (People v Lombardo, 61 NY2d 97, 103, supra, quoting People v Macerola, 47 NY2d 257, 264, supra). We conclude, as in Lombardo, that error occurred when Mattison was permitted to proceed to trial uninformed about the association of his retained counsel with Maggese. The clash between Maggese and Mattison, even if not previously apparent, was evident from the outset of the trial, as the defense was laid bare in opening statements and Maggese, the People’s first witness, took the stand. Although the Trial Judge might not — as the lower courts found — have been aware of the underlying facts, the People knew that Maggese would be a principal witness against Mattison and that he had been represented by Balok. These facts should have been brought to the attention of the Trial Judge and appropriate inquiry made (see, People v Lombardo, 61 NY2d, at p 102, supra).
Unlike Lombardo, however, reversal is required here. First, a plea by one defendant in exchange for testimony against the other in the same matter is virtually certain to
Finally, the People emphasize that Urbanski handled Mattison’s defense without help from Balok, who acted as Assistant Public Defender, and that Urbanski as a personal matter had no divided loyalties. However, if Balok by virtue of his involvement with Maggese was precluded from representing Mattison in this matter, so was Urbanski. We have made clear that, "for the purpose of disqualification of counsel, knowledge of one member of a law firm will be imputed by inference to all members of that law firm” (see, People v Wilkins, 28 NY2d 53, 56; see also, Cardinale v Golinello, 43 NY2d 288). Given the clear conflict here, we are not called upon to decide whether a Public Defender’s office, or the law firm of a part-time Assistant Public Defender, must be disqualified from representing codefendants (see, People v Wilkins, 28 NY2d 53, 56, supra).
In view of our decision, it is unnecessary to pass on Mattison’s other arguments in support of reversal.
Accordingly, the order of the Appellate Division should be reversed, defendant’s motion to vacate the judgment of conviction granted, and the case remitted to Chemung County Court for a new trial.
Chief Judge Wachtler and Judges Meyer, Simons, Alexander, Titone and Hancock, Jr., concur.
Order reversed, etc.
. The court in its findings after the CPL 440.10 hearing did not refer to the testimony of Mattison, his mother, father and sister, to the effect that their initial discussions regarding representation, and payment of a retainer, were with Balok, and also with Miller. Balok himself testified that the firm file "reflects that [Mattison] retained the firm in November 1977”, and that while he was without specific recollection, he "might have met with [Mattison] in connection with the indictment that was pending against him or other matters”, and "took no notes whatsoever during any interviews [he] may have had with [Mattison] or members of his family either in connection with this particular indictment or any other matters.” Miller did not testify.
. The court by this finding implicitly rejected Mattison’s testimony that he first learned of Balok’s representation of Maggese in July 1980, nearly two years after his conviction, in the course of a conversation with Urbanski in which Urbanski allegedly expressed distaste for the fact that no plea bargain had ever been offered to Mattison whereas Balok had been "able to work out a very successful and comfortable deal for Maggese.” On this appeal Mattison urges that by negotiating a plea for Maggese, Balok effectively precluded any similar arrangements for him.
. Mattison was an acknowledged confidential police informant, and had in the past been paid for his services. At the CPL 440.10 hearing Mattison testified that he had in fact furnished the police with information regarding several specific crimes, including crimes involving Maggese.
. [4] We are not barred from reaching this conclusion, despite the trial court’s undisturbed finding that there was no conflict, because it is a conclusion of law, not a finding of fact (see, Cuyler v Sullivan, 446 US 335, 341).